Eli Marcum Murder Case

5/12/14
DEFENDANTS BENGE AND SIZEMORE’S MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS THE INDICTMENT

Defendants Jimmy D. Benge and Gerald Sizemore by counsel, hereby move to dismiss the indictment against them because the government violated their rights under the Due Process Clause when it destroyed evidence that could have proven someone else committed the crime charged in the indictment. The evidence consisted of a knife found near the victim, as well as a partially burnt yellow telephone cord located about a yard from the victim’s head. Had those items been subjected to forensic testing, Defendants could have shown that the government’s theory of this case is inaccurate and that they were not involved in the murder. The government, however, destroyed this evidence for no apparent reason. Therefore, the motion to dismiss should be granted. In the alternative, Defendants request a hearing to determine the government’s motive for the destruction.

Background

On December 5, 2012, Lena Curry called the Clay County Sheriff’s Department to report that her father, Eli Marcum, was missing. Marcum’s body was found several days later on December 8, 2012, on Saw Mill Hollow Road in Clay County, Kentucky. Marcum had been stabbed, his throat cut, and his body burnt. The body was located in the middle of the trail road, approximately three-fourths of a mile along the trail.

On March 27, 2013, Mr. Benge and Mr. Sizemore were indicted under based on allegations that they conspired with another individual, Vernon Renus Delph, to kill Mr. Marcum with the intent to retaliate against him for providing information to law enforcement relating to the commission of a drug offense. R. 117. The government included a Notice of Special Findings announcing that it may seek the death penalty.

Senters Orders the Destruction of Evidence.

On October 1, 2013, approximately six months after Defendants’ indictment for the murder of Mr. Marcum, Det. Jeff Senters with the Kentucky State Police destroyed two pieces of evidence that had been collected from Saw Mill Hollow Road, the location where Mr. Marcum’s body was found. (Exhibit A, 10/1/2013 Crime Supplement). Those items consisted of a knife, which according to Det. Senters was located a quarter of a mile from the victim’s body on the four wheeler trail leading to the body, and a partially burnt yellow telephone cord lying one yard from the top of Mr. Marcum’s head. (Id.).

Det. Senters describes the knife as “small” without providing any measurements. He claims that the knife used to kill Mr. Marcum had a six-inch blade. He also contends that the knife believed to have been involved in the murder was “located at a residence due to interviews that were conducted with witnesses.” He further notes that the knife found on the trail had dirt particles on it and states that the Clay County Coroner— not the Medical Examiner—advised that he saw the knife and “couldn’t see anything about it to suggest it was involved in the murder.”

It is unclear, however, when the Coroner viewed the knife and what led him to conclude the knife had not been used in the murder. Finally, Det. Senters states that “it was decided that it could be destroyed due to the investigation.”. The report does not indicate who (aside from Senters) made this decision or why the knife would be destroyed “due to the investigation.” If anything, the presence of the knife near the body in an area not well-traveled supports preserving the knife because of the investigation.

Det. Senters next describes his destruction of a partially-burnt yellow telephone cord found on the ground about a yard from Mr. Marcum’s head. Det. Senters states that he “contacted” the Central Lab and talked to one of their DNA analysts. He presumably did so by telephone. He claims that the DNA analyst advised that “due to the time and weather conditions that there would probably not be DNA and if there was it wouldn’t be enough to test.”. The report does not state that the analyst ever examined the cord or even saw a picture of it. Det. Senters also notes that even though the cord was taken for evidence, “after further investigation it didn’t yield any leads.” Exactly what this “further investigation” consisted of is not included in the report. It presumably consisted of the telephone call to the analyst. In any event, government analysts typically do not perform “touch DNA” testing—testing Defendants would have sought had the evidence been maintained.

Also, the report concludes by noting that Det. Senters has “no new leads or suspects in the case.” He fails to note that, as of October 1, 2013, Mr. Sizemore and Mr. Benge had already been charged with the murder of Mr. Marcum. Det. Senters had knowledge of this fact, as he participated in the arrest of Mr. Sizemore and was the primary investigator on the case. Det. Senters does not explain whether he contacted the prosecutor assigned to the case to inquire about the evidence.

Finally, Det. Senters’s report states that the case had been “turned over to the DEA.” (Exhibit A). Although he purports to be assisting the DEA in the investigation, his role presumably took a backseat to the DEA. He does not suggest that the DEA instructed him to destroy the evidence.

Had the items been preserved, Defendants would have investigated whether either item contained DNA or fingerprints. They also would have investigated whether the owner(s) of either item could be determined. Det. Senters’s actions mean that Defendants will be deprived of these opportunities in presenting their defense.

Defendants Jimmy Benge and Gerald Sizemore have moved to dismiss the indictment, which charges them with conspiring to kill Eli Marcum based on his suspected role as a federal informant. The Defendants claim their Due Process rights were violated when Kentucky State Police Detective Jeff Senters destroyed two items found near the body of the victim. These items consist of a small knife found lying approximately a quarter of a mile away from Marcum’s body on a well-traveled four wheeler trail and a partially burnt telephone cord found approximately one yard from the top of the victim’s head. This motion should be denied because Detective Senters did not destroy the items at issue in bad faith and because the exculpatory nature of the evidence was not apparent at the time of destruction. The United States does not object to holding an evidentiary hearing on the matter.

Factual Background

In November of 2012, Jimmy Benge, along with several co-defendants, were indicted for conspiring to distribute oxycodone. Thereafter, on December 5, 2012, Lena Curry reported her father, Eli Marcum, missing to the Clay County Sheriff’s Department. Kentucky law enforcement officials discovered Marcum’s dead body three days later along Saw Mill Hollow Road, a well-traveled four-wheeler trail in Clay County, Kentucky. The body was located in the middle of the trail, approximately three-fourths of a mile along the route. Marcum’s throat had been cut from ear to ear, with his body burnt and stabbed multiple times. There were exit wounds on the back of Marcum’s body where he had been stabbed, evidencing that the knife used to stab him effectively skewered his midsection. During a broad canvas of the area, a small knife was found approximately a quarter mile from the body, and a partially burnt yellow telephone cord was found approximately one yard above Marcum’s head.

Marcum was pronounced dead by the Clay County Coroner, Danny Finley, at 3:50 p.m. on December 8, 2012. An autopsy was conducted on the morning of December 9, 2012 by Medical Examiner John Hunsaker. According to the autopsy report, the knife used to kill Marcum inflicted wounds six-inches deep. Several witnesses corroborated the fact that the murder weapon had a six-inch blade, as the investigation of Marcum’s murder progressed. On March 27, 2013, Defendants Benge and Sizemore, along with co-defendant Vernon Delph, were charged, by superseding indictment, with conspiring to kill Eli Marcum.

Senters’ Involvement in the Investigation

At the time the body was found, Detective Richie Baxter was the primary case investigator of the Marcum murder. Detective Jeff Senters responded to the scene as well. A native of Clay County, Senters was assigned to walk the four-wheeler trail beyond the body to look for anything suspicious or relevant to the case. Detective Senters did not observe or collect the small knife, but did help to collect the telephone cord. Detective Senters was assigned the Marcum murder investigation approximately one month after the body was found. At that time, Senters familiarized himself with the evidence of the case.

The small knife and telephone cord had been maintained in a small box at KSP Post. On October 1, 2013, nearly ten months after the body was found, Detective Senters disposed of these items, believing them to have no value to the investigation. [Record No. 393-2.] Prior to destruction, Senters took affirmative action to confirm this belief. First, he confirmed that law enforcement officials believed they knew the location of the actual murder weapon based on its physical characteristics and witness statements. Second, Senters consulted with the Coroner about the victim’s wounds.

The Coroner opined that the murder weapon was much larger than the small knife at issue, and that the dirt particles and lack of blood on the small knife were inconsistent with the conclusion that it was used in the Marcum murder. Third, Senters confirmed with a Central Lab DNA analyst that the telephone cord would very likely not contain any viable DNA evidence.

In what he considered an abundance of caution, Detective Senters photographed the telephone cord and the small knife and provided them to the prosecutor. Upon learning of the existence and subsequent destruction of the items, the government promptly disclosed the pertinent facts as well as photographs of both the knife and telephone cord to defense counsel. This motion followed.

Legal Standard

As adequately stated by the Defendants in their pending motion to dismiss, a court
may find a defendant’s rights to due process were violated and the indictment against him should be dismissed based on the prosecution’s failure to preserve evidence in two ways. First, the failure to provide a defendant with “material exculpatory evidence” violates a defendant’s due process rights “irrespective of the good faith or bad faith of the prosecution.”

Second, where the government fails to preserve evidence which has an indeterminate exculpatory value and is only “potentially useful” to a defendant, the defendant must satisfy three elements to prove a violation of his constitutional rights: (1) that the government acted in bad faith in failing to preserve the evidence; (2) that the exculpatory value of the evidence was apparent before its destruction; and (3) that the nature of the evidence was such that the defendant would be unable to obtain comparable evidence by other reasonably available means.

In this case, the Defendants argue only that the government failed to preserve potentially exculpatory evidence.

Analysis

The Defendants’ due process rights have not been violated. First of all, Detective
Senters’ destruction of the knife and the telephone cord was not made in bad faith. This is because Senters honestly believed the items had no evidentiary value. According to the Supreme Court, “[t]he presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.”

“To establish bad faith, then, a defendant must prove ‘official animus’ or a ‘conscious effort to suppress exculpatory evidence.’” In the instant case, Detective Senters truly believed, based on the knowledge he had concerning the exculpatory value of the knife and telephone cord at the time of destruction, that the items had no bearing on the Marcum murder investigation. In regard to the knife, this knowledge included Marcum’s autopsy report which indicated a much larger, six-inch blade was used in the murder. In addition, the fact that a “large knife” had been used as the murder weapon had been corroborated by several witnesses throughout the investigation. In fact, based on the gathered information, law enforcement believed they knew the location of the actual murder weapon prior to the destruction of the small knife. Furthermore, Marcum’s injuries, a deep cut from ear to ear across his throat and several stab wounds which showed a knife had effectively skewered his body, were not consistent with the use of a small knife like that found along the trail. And finally, the knife was found about a quarter mile from Marcum’s body, along a well-traveled four-wheeler trail.

As stated by Senters in his destruction report, the small knife “could have been dropped by multiple people” riding along the trail. Put simply, at the time of destruction, Senters truly believed the small knife was in no way connected to the Eli Marcum murder. Similarly, in regard to the telephone cord, Senters had actively inquired to a Central Lab DNA analyst as to whether the cord could contain any DNA evidence. According to the DNA analyst, the cord would most likely not contain any DNA evidence and even if it did, would not have enough to test. Again, at the time of destruction, Detective Senters truly believed that the cord had no exculpatory value to the investigation of the Eli Marcum murder.

The Defendants have failed to establish that Detective Senters’ decision to destroy the items at issue was based on “official animus” or that he made a “conscious effort” to suppress evidence. Senters was assigned the investigation a month after the body had been discovered. Based upon the evidence he had available to him, it was not bad-faith for him to find the small knife and the telephone cord of no value to the investigation. In addition, contrary to the Defendants’ contention, Detective Senters’ statement that a six- inch knife was used to kill Marcum is not contradicted by the record.

Instead of stating he has no opinion as to the murder weapon during the Defendants’ investigator’s questioning, Hunsaker actually stated he has no opinion as to the knife used to kill Eli Marcum “unless it’s in the [autopsy] report.”

As mentioned above, the autopsy report indicated six-inch puncture wounds in Marcum’s body. In addition, the argument that Detective Senters acted intentionally in destroying evidence, instead of by mistake or pursuant to department policy does not change the Court’s analysis.

Finally, the argument that the knife “could have been the murder weapon” and the fact that the telephone cord “was found feet away from the victim’s body” does not liken Detective Senters’ destruction of the evidence to bad faith.

Admittedly, an argument could be made that Detective Senters may have acted negligently or even grossly negligently in unilaterally destroying the knife and the telephone cord. Even so, this is not a basis to find bad faith. As pointed out by the Defendants, even gross negligence on behalf of the government in failing to preserve evidence is insufficient to establish bad faith.

Significantly, even if the knife and telephone cord had been destroyed in bad faith, the Defendants would still not prevail on their pending motion. “The Due Process Clause does not impose ‘an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.’”

As exhaustively summarized above, the exculpatory nature of the knife and the telephone cord was not apparent at the time of destruction. The description of the murder weapon by the autopsy report as well as several witnesses did not comport with the characteristics of the knife found a quarter mile away from the murder scene. Likewise, according to a DNA analyst, the telephone cord possessed little to no chance of revealing DNA evidence.

The record and factsof the investigation do not support the conclusion that Detective Senters acted in bad faith in destroying the knife and telephone cord or that the exculpatory nature of the evidence was apparent at the time of destruction.

Conclusion

As the Defendants have not carried their burden of proving a violation of their Due
Process rights, the pending Motion to Dismiss Indictment [Record No. 393] must be denied.

Respectfully submitted,
KERRY B. HARVEY
UNITED STATES ATTORNEY

9-3-14
Affidavit of Sergeant Starlin Hacker

1. My name is Starlin Hacker. I am employed as a Sergeant with the Kentucky State Police at the Kentucky State Police Pose in London, Kentucky. I make this affidavit on personal information and knowledge learned during the course and scope of my employment.

2. In or around late fall of last year, Detective Jeff Centers came to me to ask about items that had been collected in a murder investigation. He said the items had not been put into evidence function and acted as if they should have never been collected with the case.

3. I told Detective Senters if they were not related to the case to photograph the items and fill out KSP 41 (evidence for) before destroying them. Detective Centers told me that he then threw the items in the trash. I did not physically see Detective Centers throw the items in the trash but had no reason to believe otherwise.

An evidentiary hearing in the Eli Marcum murder case has been scheduled for Tuesday January 6 (2015) at 10 AM, at the United States Courthouse in Lexington, before Judge Amul Thapar. Lawyers for Jimmy D. Benge and Gerald Lee (Jerry) Sizemore had been given the choice between November 25 and January 6.

A hearing had been scheduled for November 3 was canceled just days after co-defendant Vernon Renus “Red” Delph pleaded guilty in the case and implicated Sizemore and Benge in the murder of Federal Informant Eli Marcum.

Benge, Sizemore and Delph were charged with murder in the December 2012 death of Marcum. Delph has agreed to a 120-month sentence.

According to his plea agreement, after Delph took Sizemore to Benge’s house Sizemore told him he had a job to do for Benge. Following that trip Delph said he learned from another person that Benge was going to pay Sizemore to kill Marcum for being a “rat”.

Delph said he saw Sizemore kill Eli Marcum and was offered $4,000 to help get rid of the body. Delph said they drove to Saw Mill Hollow were Sizemore poured liquid from a gallon jug on the body and set it on fire.

Seven other co-defendants have pleaded guilty in count one (distributing oxycodone) of the indictment: Suzanne Fox, Robert Lee Hibbard, Marvin Collins, Audrey Hall, Mark Anthony Prilaman, Ronnie Boggs and Junetta Benge. Delph is the only one to discuss the murder (count two) in a plea deal.
On May 12 Jimmy Benge and Sizemore asked their case to be dismissed because of destroyed evidence that could have proven someone else committed the crime charged in their indictment. The evidence consisted of a small knife and a partially burnt yellow telephone cord.

On June 2 state police decretive Jeff Senters testified the knife was much smaller than a “large knife” that had been used as the murder weapon. Several witnesses and law enforcement believed they knew the location of the actual murder weapon prior to the destruction of the small knife.

Senters testified he had actively inquired to a Central Lab DNA analyst as to whether the cord could contain any DNA evidence and according to the DNA analyst; the cord would most likely not contain any DNA evidence and even if it did, would not have enough to test. Senters resigned his position on August 16.

On September 10 Sizemore and Benge asked to resume their evidentiary hearing to call additional witnesses and cross examine witnesses who submitted affidavits in the discovery report. Their request was granted and the hearing was scheduled for October 3 then later rescheduled for November 3.

On Monday, December 1, 2014, at 10:00 a.m., the Court held a telephonic conference to discuss defendant Gerald Lee Sizemores emergency motion to compel production of evidence related to government misconduct. Defendant Gerald Sizemore moves that the Court order the government to produce immediately evidence related to new misconduct by the government, its unauthorized contact with him by the government outside of the presence of his attorney.

DEFENDANT GERALD SIZEMORE’S EMERGENCY MOTION TO COMPEL PRODUCTION OF EVIDENCE RELATED TO NEW GOVERNMENT MISCONDUCT

Defendant Gerald Sizemore moves that the Court order the government to produce immediately evidence related to new misconduct by the government, its unauthorized contact with him outside of the presence of his attorney. In addition, he requests that the Court expand the scope of the hearing on January 6, 2015, to hear evidence of the misconduct and consider an appropriate remedy.

The government has filed Notice of Special Circumstances, indicating that the potential penalty is death. Mr. Sizemore previously brought a motion to dismiss related to the government’s intentional destruction of exculpatory evidence. An evidentiary hearing was held before the Court, and after the hearing, the government disclosed evidence showing that one of its witness testified falsely.

On November 10, 2014. agents of the Federal Bureau of Investigation appeared at the Grayson County Detention Center, where Mr. Sizemore is being held. They caused Mr. Sizemore to be brought to the attorney meeting area of the jail, telling Mr. Sizemore that his attorney was there to meet with him. Because of the deception, Mr. Sizemore went to meet with them.

The FBI agents then proceeded to interrogate Mr. Sizemore about an allegation that he had made a threat on the prosecutor in this action. On information and belief, the FBI agents had already determined that the allegation had been made by an inmate at the jail seeking a sentence reduction and was not credible. Nevertheless, the FBI agents proceeded with the interview, without notifying Mr. Sizemore’s counsel.

Mr. Sizemore eventually terminated the interview. As they were leaving, one of the agents said, “We’ll be watching you.”

The Government has agreed not to use information related to the open threat investigation in the Western District of Kentucky against the Defendant in this matter. Therefore, the Defendant’s rights in this action are unaffected by what happens in the threat investigation. Since the initial letter that began the threat investigation contained information related to this case, it was provided to defense counsel following the telephonic conference on December 1, 2014. A post-Miranda interview also exists where the Defendant promptly invoked his right to counsel. That material was disclosed to defense counsel on December 11, 2014. The remaining material, including investigative techniques and witness statements, involves a pending investigation where no formal charges have been brought.

For practical reasons, the target of an open investigation is not entitled to know what/how evidence is being gathered. Undersigned counsel is aware of no precedent requiring disclosure of such information – particularly when the government has conceded no information related to that investigation would be used in the charged offense. The United States, therefore, objects to disclosing further information related to the threat investigation.

In his initial memorandum, Defendant Gerald Sizemore explained that the government had made an unauthorized contact with him in violation of federal law and the Kentucky Rules of Professional Responsibility. Government prosecutors sent FBI agents to interview Mr. Sizemore, despite knowing he was represented by counsel. Mr. Sizemore has asked the Court to order the production of evidence related to the contact so he could determine whether the evidence showed additional government attempts to violate his constitutional rights.

In response, the government does not contest Mr. Sizemore’s most important contentions:

That Fed. R. Crim. P. 16 requires the government to produce evidence which is “material to the defense,” including evidence which the defendant could use to support a motion to dismiss. In response, the government has attempted to contain the damage. It has agreed not to use any evidence related to the alleged threat or any evidence from the illegal contact in any way. It has also produced the original accusation letter and the tape recording of the illegal contact. The government’s actions are not enough, however. The recording shows that the government continued talking to Mr. Sizemore after he invoked his right to an attorney, in an apparent attempt to draw him into conversation. The recording also suggests that the government is in possession of illegal recordings of Mr. Sizemore it has not yet produced. The Court should order the government to produce immediately all the evidence related to the government’s unauthorized contact with him, so that he may use it at the hearing on January 6. The Court should also require the government to produce any additional Brady and Giglio material related to the destruction of evidence or the actions of former Kentucky State Police Detective Charles Senters. Brady requires the information favorable to the defense be produced not only in time for effective use at trial, but also for use at any pretrial hearing necessary to preserve the defendant’s constitutional rights.

Argument

I. THE COURT SHOULD ORDER THE GOVERNMENT TO PRODUCE ALL EVIDENCE RELATED TO THE IMPROPER CONTACT.

The federal rules require the government to produce the evidence it has gathered of the alleged threat and the contact which resulted from it. Fed. R. Crim. P. 16(a)(1)(E) requires the government to produce evidence which is “material to preparing the defense. . . .” This category includes not only evidence he could introduce at trial, but also material he could use to rebut the government’s evidence or support his defense.

The evidence produced so far suggests that the government has made other recordings of Mr. Sizemore which it has not yet produced. The informant offered, in a letter written on June 10, 2014, to assist the government to gather evidence against Mr. Sizemore. A logical investigative strategy – for a government unconcerned with the defendant’s constitutional rights – would be to place a recording device on the informant or in Mr. Sizemore’s cell. This tactic would also explain why five months passed before the government approached Mr. Sizemore.

The government should produce those tape recordings. A review of them will likely show that Mr. Sizemore made no statements of any intent to harm the prosecutor, and that the contact was not made for any legitimate investigative purpose. Rather it was made in an attempt to intimidate Mr. Sizemore.

Depending on the government’s motive and justification for the contact, Mr. Sizemore may file an additional motion to dismiss or for other relief. He cannot evaluate the merits of filing such a motion without careful consideration of all the evidence the government possesses related to the contact.

II. THE GOVERNMENT SHOULD PRODUCE ALL INFORMATION IN ITS POSSESSION RELATED TO SENTERS’ MISCONDUCT.

After the hearing on the defendants’ motion to dismiss, the government produced certain additional information disclosing that Senters had perjured himself at the hearing. He resigned from the Kentucky State Police, and upon information and belief, is under criminal investigation.

The defendants have reason to believe the government is aware of other misconduct by Senters, both in this case and others. Brady requires, in the context of this case, that the government produce this information so that the defendants may use it at the upcoming hearing.

Comes now the Defendant, Gerald Sizemore, by and through counsel, and moves the Court to set this matter for rearraignment on a Superseding Information Mr. Sizemore expects the government to file. A hearing on the destruction of evidence in this matter had previously been scheduled for Tuesday, January 6, 2015. Mr. Sizemore respectfully requests that the hearing on the destruction of evidence be continued pending a hearing on this motion for rearraignment. He also requests that the hearing on the motion for rearraignment be held on Tuesday, January 6, 2015, at the United States Courthouse in Lexington, Kentucky.

Jimmy D. Benge has agreed to a guilty plea to conspiracy to Distribute Oxycodone and the United States will move at sentencing to dismiss murder charges against Benge. He agreed to a sentence of 240 months and three years of supervised release. Sentencing is scheduled for April 23.

The original indictment charged that in October (2012) and continuing through December (2012) in Clay County Benge, Gerald Lee Sizemore and Vernon Renus Delph did conspire to kill Eli Marcum with intent to retaliate against him for providing information to a law enforcement officer.

Benge had to pay community restitution of $6500 and forfeit his 1971 Chevrolet Nova and !999 Harley Davidson but retained his residence at Willow Road in Manchester and 1.35 acres by paying $23,500.00 cash. The property will be forfeited if full payment is not made on or before the date of sentencing.

According to the plea agreement from September (2011) through October (2012), Benge conspired with others to distribute oxycodone in and around Clay County. Multiple persons were retained by Benge to travel to out of state pain clinics to obtain oxycodone. Benge paid for the trips for these persons.

In exchange, Benge received a substantial portion of each person’s prescription. Many times Benge held the prescription for the trip participant until Benge could find a location to fill the prescription. Once prescriptions were filled, Benge sold the oxycodone for profit. During the course of the conspiracy, Benge used trip managers to ensure participants retained oxycodone obtained from the pain clinics until their return.

A sealed supplemental plea agreement was also entered in the case. Seven other co-defendants have pleaded guilty in count one (distributing oxycodone) of the indictment: Suzanne Fox, Robert Lee Hibbard, Marvin Collins, Audrey Hall, Mark Anthony Prilaman, Ronnie Boggs and Junetta Benge. Junetta Benge was released to home detention. Hibbard has filed a motion for a sentencing hearing, but is currently undergoing medical treatment at a federal prison hospital. Hall filed a sealed motion in the case. The others agreed to continue their sentencing hearings pending the outcome of the case against Benge and Sizemore.

A federal appeals panel has refused to reverse the conviction and sentence of a Clay County drug dealer who pleaded guilty in a case that involved a murder. The decision by the U.S. 6th Circuit Court of Appeals said Jimmy D. Benge waived his right to appeal the conviction and judgment as part of the plea deal.

Benge has agreed to a guilty plea to conspiracy to Distribute Oxycodone and the United States dismissed murder charges. He agreed to a sentence of 240 months and three years of supervised release.

U.S. District Judge Amul Thapar sentenced him, but after the sentence Benge asked to withdraw his plea, which led to the appeal.

Benge had to pay community restitution of $6500 and forfeit his 1971 Chevrolet Nova and 1999 Harley Davidson but retained his residence at Willow Road in Manchester and 1.35 acres by paying $23,500.00 cash.

According to the plea agreement from September (2011) through October (2012), Benge conspired with others to distribute oxycodone in and around Clay County. Multiple persons were retained by Benge to travel to out of state pain clinics to obtain oxycodone. Benge paid for the trips for these persons.

In exchange, Benge received a substantial portion of each person’s prescription. Many times Benge held the prescription for the trip participant until Benge could find a location to fill the prescription. Once prescriptions were filled, Benge sold the oxycodone for profit. During the course of the conspiracy, Benge used trip managers to ensure participants retained oxycodone obtained from the pain clinics until their return.

The appeals panel said in their decision that there was no error that would warrant reversing Benge’s conviction.

A grand jury had charged that Benge, Gerald Lee Sizemore and Vernon Renus “Red” Delph conspired to kill Eli Marcum in Clay County in December 2012 because of a suspicion that Marcum had given police information about the drug operation.